Sex and the Law: What Does it Mean to be Male?

Thomas Beatie is only four weeks away from giving birth to a daughter eagerly awaited by him and his wife Nancy. Mr. Beatie is legally male and legally married to his wife Nancy, who underwent a hysterectomy at a young age. But, as one might suppose from his ability to carry a child, Mr. Beatie has a uterus. That’s because Mr. Beatie is transgendered, having been born as a woman with a uterus but abandoning all other aspects of what society considers “female.” Scholars specializing in the field of Gender Studies have long emphasized a dichotomy between sex and gender. Students of Gender Studies learn that a person’s sex is best defined as the state of his or her reproductive organs, while a person’s gender is a much larger and more complex soup, involving mental states and self and societal perceptions. Mr. Beatie’s story seems to make their point.

In his journey to sex reassignment, Mr. Beatie had his breasts reconstructed and began testosterone therapy. Sex reassignment surgery didn’t include his sterilization because, as he wrote, “Wanting to have a biological child is neither a male nor female desire, but a human desire.”

But, one wonders, what on earth does it mean to be legally male if having a uterus and giving birth aren’t disqualifications? In recent years, courts have looked at several cases involving transgendered spouses who wanted to retain custody of their children after a divorce. In another instance, a court addressed the issue of whether a transgendered person could obtain wrongful death benefits after the death of a spouse. Courts are split on the issue as to whether “gender” trumps “sex” or vice versa in determining the legal status of individuals. In any case, with a growing national population of transgendered individuals and the popularity of shows like Trans Generation, it just might happen that Mr. Beatie won’t be the last pregnant man in the news.

3 Responses to Sex and the Law: What Does it Mean to be Male?

Paperwork and legal sex are assigned to newborns not by civil servants but by doctors. Usually it is easy for the doctor to make a choice, sometimes it is not easy but nonetheless a choice must be made, it is required by law. What is beyond doubt is that assigning sex is a medical matter and only doctors are qualified to do it.

Given that we are dealing with humans and sometimes the choice is not easy it is inevitable that mistakes will happen, but there is not even agreement on what constitutes a mistake. Some laws insist that mistakes cannot happen, the law is an ass!

But since we agree that assigning sex is a medical matter, we should reflect that the PURPOSE of medicine is ALWAYS to act in the patient’s best interest. And there you have answer – a person’s sex is not determined by religious dogma not by anatomy textbook on uteruses but it is whatever sex serves that person’s best interest.

Which then leaves the 64000 dollar question, “Are adults competent to have control of their own bodies and to decide what is in their own best interest?” OR should they be treated like children who don’t know what is good for them as evidenced by the unquestionably true fact that some people make bad (even stupid) choices?

And of course the answer is – opinions will vary – it largely depends on whose ox is getting gored tonight.

I’m sure I’m competent do direct my own life, but I’m not sure you are competent to direct yours! See what I mean?

1. Everyone is either M or F, no-one is neither.
2. Everyone is M or F, but not both simultaneously
3. Everyone is permanently M or permanently F, it can’t change.
4. M people can’t get pregnant, and F people can’t impregnate
5. You don’t need a fully equipped laboratory to tell one M person from the majority of F people, or the reverse. That is, men look male, women look female.

No definition that has all these properties exists, but perhaps one that satisfies most will be acceptable.

The following one was proposed for a constitutional amendment some time ago in California, and on first glance, it seems reasonable.

“A man is an adult male human being who possesses at least one inherited Y chromosome, and a woman is an adult female human being who does not possess an inherited Y chromosome.”

Analysing this:

Property 1 is preserved, providing you drop “male person” and “female person” and just say “person”. If you don’t drop the “male” or “female” bit then you violate the first property, as some people’s appearance is ambiguous, and chromosomes don’t match appearance in others – assuming you go by birth certificates. Which in some countries have an option for “X”, neither M nor F (e.g Australia, see the Alex Macfalane case).

Property 2 is preserved – that’s one out of 5.

Property 3 is violated by those who are 46xx/47xxy mosaics, with a low proportion of 47xxy. During cell turnover, 47xxy is selected against, so in later life, the person may be genetically entirely 46xx.

Property 4 is hopelessly compromised. There are people with defective SrY complexes who are 46xy but have become pregnant, and those with 46xx chromosomes but a translocated SrY complex who have become biological fathers. Worse, SrY isn’t the only complex that can cause masculinisation, there are 3, so a test for SrY doesn’t work either. Those women with Swyer syndrome can become surrogate mothers, they have all the normal female reproductive system bar the ovaries. They are 46xy and have streak (atrophied) male gonads.

Property 5 is also completely compromised. Apart from those who have transitioned, there are many women with 46xy chromosomes and feminising Complete Androgen Insensitivity Syndrome, and many men with 46xx chromosomes and masculinising Congenital Adrenal Hyperplasia. Not forgetting those born with other Intersex conditions (or victims of botched genital surgery such as infant circumcision) who have been surgically “corrected” at age 1 year without their knowledge or consent. Many don’t even know this happened to them. Then there are those with 5ARD who look female at birth, but masculinise at puberty. There are other similar conditions too, 17BHDD being the most common. So you can’t go by appearances, or even medical records. A simple, cheap test for presence of SrY will give a false positive for the presence of a Y chromosome if it’s translocated. A single buccal smear or blood test and karyotype costing thousands won’t detect mosaicism, you need multiple samples from different parts of the body, maybe a hundred thousand’s worth.

Note I haven’t even mentioned Transsexuality yet, just Intersex.

Compare with the Australian Family Court ruling in Re Kevin:

At paragraph [270]: ‘But I am satisfied that the evidence now is inconsistent with the distinction formerly drawn between biological factors, meaning genitals, chromosomes and gonads, and merely “psychological factors”, and on this basis distinguishing between cases of inter-sex (incongruities among biological factors) and transsexualism (incongruities between biology and psychology)’.

At paragraph [272]: ‘In my view the evidence demonstrates (at least on the balance of probabilities) that the characteristics of transsexuals are as much “biological” as those of people thought of as inter-sex’.

At paragraph [136]: ‘I agree with Ms Wallbank that in the present context the word “man” should be given its ordinary contemporary meaning. In determining that meaning, it is relevant to have regard to many things that were the subject of evidence and submissions. They include the context of the legislation, the body of case law on the meaning of “man” and similar words, the purpose of the legislation, and the current legal, social and medical environment. These matters are considered in the course of the judgment. I believe that this approach is in accordance with common sense, principles of statutory interpretation, and with all or virtually all of the authorities in which the issue of sexual identity has arisen. As Professor Gooren and a colleague put it:-

“There should be no escape for medical and legal authorities that these definitions ought to be corrected and updated when new information becomes available, particularly when our outdated definitions bring suffering to some of our fellow human beings”.

So you look at the totality, add a dollop of common sense, and in difficult cases, some simple common humanity. That way, all but property 3 is preserved.

Property 1 can be violated at the person’s specific request, assuming a medical condition that justifies it – again, see the Alex MacFarlane case.

As for me… in Australia, should anything happen to my partner, I could only marry a man. That’s because same-sex marriage is illegal here. In the UK, where I was born, I could only marry another woman. That’s because same-sex marriage is illegal there. They use different definitions, and who I could marry in the US would depend on the state, and sometimes, the county. In Malta, I couldn’t marry anyone, as I’d be considered neither M nor F.